Chris Micheli

Are These Extra Words Needed in California Statutes?  By Chris Micheli             In reading California statutes, I have seen multiple instances in which I believe there are extraneous words in bills and, ultimately, statutes in the 29 California Codes. Being concise is a key principle in drafting legislation and so I raise a couple of examples of language consistently found in statutes and pending legislation.             The first one is the use of the word “may.” The Codes have preliminary or general provisions, including the following guiding principle: “Shall” is mandatory and “may” is permissive. When the term “may” is used, it conveys a permissive or discretionary action is to be undertaken. So, let’s look at the first item I find duplicative: Why is the following language needed? “A court may, at its discretion, ….” We already know that the term “may” means i...

This Is an Interesting Limit on Rulemaking Power  By Chris Micheli             In perusing statutes in California’s 29 Codes, and with a keen interest in administrative law and the rulemaking process, I came across this interesting provision of state law: Fish and Game Code Section 6885 states that the Fish and Game Commission has “no power to modify the provisions of this article by any order, rule, or regulation.” What makes this statutory provision interesting? Executive branch agencies, departments, boards, commissions, and bureaus can engage in quasi-legislative activity (i.e., rulemaking) generally through a statutory grant of lawmaking authority that obviously comes from the enactment of a statute by the Legislature (who is granted lawmaking power by the state Constitution) and signed into law by the Governor (who essentially oversees the executive branch bureaucracy). However, in this case, the Legislature enact...

Probate Code Could Be a Basis for Statutory Interpretation Principles  By Chris Micheli             In reading sections of California’s Codes (the 29 Codes contain the state’s more than 156,000 statutes), I came across several interesting sections of the California Probate Code which could serve as a basis for codified statutory construction principles. Division 11 (“Construction of Wills, Trusts, and Other Instruments”), Part 1 (“Rules for Interpretation of Instrument”), Chapter 2 (“Ascertaining Meaning of Language Used in the Instrument”) of the California Probate Code could be used for other statutory interpretation principles that could be codified in California law.             Section 21120 provides that the words of an instrument are to receive an interpretation that will give every expression some effect, rather than one that will render any of the expressions...

What Is a “Loophole” in California Tax Laws?  By Chris Micheli             For years around the State Capitol, and this year in particular, we have heard the claim of tax increase proponents in the Legislature or proposed initiatives on the ballot are simply “closing a tax loophole.” So, what exactly is a “loophole” in the tax laws?             According to a dictionary definition: loop·hole /ˈlo͞opˌ(h)ōl/ noun an ambiguity or inadequacy in the law or a set of rules. Similarly, according to Wikipedia, “A loophole is an ambiguity or inadequacy in a system, such as a law or security, which can be used to circumvent or otherwise avoid the purpose, implied or explicitly stated, of the system.” Other observers have defined a loophole as “basically a technicality that allows one to escape violating the law through some activity.” My takeaway from these definitions...